R v B, JKJ
[2009] SADC 82
•6 August 2009
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, JKJ
Criminal Trial by Judge Alone
[2009] SADC 82
Reasons for the Verdicts of His Honour Judge David Smith
6 August 2009
CRIMINAL LAW
Trial by judge without jury – accused pleaded not guilty to two counts of Indecent Assault of his partner’s 13 year old niece who was staying at his house over the September 2004 school holidays – accused denied the two incidents of sexual abuse alleged – allegations of sexual abuse emerged 18 months after alleged abuse in a setting of family discord and Family Court proceedings – discussion of need by the trial judge as the finder of fact to direct himself in accordance with the principles in Longman v The Queen and s 34I(6a) of the Evidence Act – consideration of whether there was corroboration of the complainant’s allegations.
Held: that prosecution had not proved the two charged offences beyond reasonable doubt and in particular the prosecution had not excluded as a reasonable possibility that the allegations were the product of discord in the family.
Verdicts – accused is acquitted of both charges.
Criminal Law Consolidation Act 1935 s 56; Evidence Act 1929 s 13(7), s 39CB; Statutes Amendment (Evidence and Procedure) Act 2008 No. 7 s 22, referred to.
R v Jacobs (1998) 143 LSJS 14; R v Baskerville [1916] 2 KB 658; Ridley v Whipp (1916) 22 CLR 381; Longman v The Queen (1989) 168 CLR 79; R v Seigneur (2009) 103 SASR 207; R v M [2004] SASC 435; R v Calides (1983) 34 SASR 355, considered.
R v B, JKJ
[2009] SADC 82Introduction
The accused is charged on Information with:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act1935).
Particulars of Offence
JKJB between the 25th day of September 2004 and the 10th day of October 2004 at Paralowie, indecently assaulted CNB, a person of the age of 13 years.
Second Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
JKJB between the 25th day of September 2004 and the 10th day of October 2004 at Paralowie, indecently assaulted CNB, a person of the age of 13 years.
The accused elected for trial by a judge without a jury. He was arraigned before me on the 29th June 2009 and pleaded not guilty to the above charges. The trial proceeded, with some breaks, for three days concluding on the morning of the third day with final addresses from both counsel. I then adjourned to consider my verdicts. I now publish my reasons and hand down my verdicts.
Background Circumstances
The following matters of fact are uncontentious.
The accused is now 47.
As at the time of this alleged offending, he was living in a de facto relationship with NS. They had been living together since 1989. In 1991 they purchased a house at Paralowie. There is a daughter of the relationship, named N, who was born on the 11th August 1999 and so was five years old at the time of these events.
The charged offences are alleged to have occurred in the Paralowie house during the September 2004 school holidays, which, it is agreed, were between the 25th September 2004 and the 10th October 2004.
The complainant, CNB, is the daughter of NS’s sister, N. She was born on the 29th December 1990 and so at the time of the September 2004 school holidays was 13 years old. She then lived with her parents MB and NB and her six-year-old brother T in a northern country town and was in year 8 at the town’s high school. During school holidays the complainant and her brother T often would visit their grandmother in Paralowie and also stay for one or two nights at the Paralowie house of the accused and their auntie NS.
In the September 2004 school holidays the complainant and her brother T stayed overnight with their auntie, the accused, and their cousin N. The accused was then unemployed and at home. He had ceased working at the South Australian Brewing Company on Port Road in late 1998. He said that he became “violently ill” at work and described being beset by debilitating migraine headaches which did not respond to either ordinary medical or specialist psychiatric treatment. NS too had ceased work and was at home caring for the child N.
The Allegations and Responses thereto – Subsequent Circumstances
The complainant alleges that, on one day, in the course of those holidays, at the Paralowie house, the accused on two separate occasions indecently touched her. In particular, she alleges that:
·firstly, on the afternoon of one day, in the kitchen of the house, the accused touched her on the right breast including her nipple, under her brassiere and in the vagina area above her clothes; and
·secondly, on the evening of the same day, in the lounge room of the house the accused touched her on both breasts and nipples, under the brassiere, and touched and rubbed her vaginal area under her pyjama pants but over the top of her knickers.
It was not until May 2006 that the complainant told her mother and then the police, what she alleged happened. The accused, when spoken to by police on the 19th November 2006, denied the indecent touching.
By the time that these allegations emerged in May 2006, the accused and his partner were separated and had been in dispute with one another for almost 18 months. In particular, in December 2004, whilst the accused was in hospital following a suicide attempt, NS discovered, amongst his personal papers, copies of love letters written by him to another woman. The relationship ended immediately. The accused did not return home. Upon his discharge from hospital he went to live with his mother. Custody, access and property division disputes arose. In January 2005, the child N complained to her mother that the accused had exposed himself to her. NS reported the allegation to Families SA. It did not proceed to the laying of charges because of the child’s reluctance to advance the matter. However, as a result NS, in the Family Court, sought to prevent the accused having any access at all to the child N.
It was in the midst of this troubled setting that the above allegations of CNB emerged in May 2006.
The accused claims that CNB’s allegations are false and are motivated by a shared family antagonism directed towards him in relation to the above matters.
I now turn to the evidence.
Evidence
The prosecution case comprised oral evidence from:
·CNB (complainant); and
·NS (complainant’s auntie).
Further, the following facts were agreed:
·that the complainant was born on the 29th December 1990; and
·that the September school holidays at the complainant’s High School in 2004 were between Saturday the 25th September and Sunday 10th October.
Finally, by consent the prosecution tendered the video recorded interview of the accused of the 19th November 2006 and a transcript thereof (see Exhibit P3 and P4).
The accused gave evidence in his own defence and in particular denied any inappropriate touching of the complainant.
Prosecution Evidence
I start with the prosecution evidence.
The complainant CNB gave evidence outside the courtroom, which was transmitted to the Court by means of closed circuit television. I direct myself in accordance with s 13(7) of the Evidence Act 1929.
She said that she and her brother T stayed overnight at the house of the accused and her auntie in the September 2004 school holidays. She said that, during that stay, the accused touched her inappropriately on two occasions on the one day.
She described the first occasion in the following terms.
She and the accused were alone in the house, on an afternoon, and playing a board game on the kitchen table. She left the table to fetch a glass of water. The accused grabbed her and “put her on her back on the floor”. He then straddled her, and put his hand under her brassiere and for a few minutes touched her right breast and nipple. Then with the same hand, again, for a few minutes, he touched and rubbed her vaginal area over the top of her pants and knickers. This first episode ended when she pushed the accused off. She then went outside into the backyard and there awaited the return of her auntie.
She did not complain then to anyone about what she claimed happened.
She then proceeded to describe the second occasion.
She and her brother were sleeping the night on mattresses on the lounge room floor. Early in the evening the accused, NS, T and the complainant were watching TV in the lounge room. At about 9 or 10 pm T had fallen asleep on one of the mattresses and NS had left the room to go to bed. The complainant was dressed in her pyjamas and was seated in one of the lounge chairs. The accused was seated in another. The complainant decided to go to bed and rose from the chair and headed towards the nearby mattress where she was to sleep the night. The accused took her by the arm and made her sit on his lap. His legs were together and she sat sideways across his knees. The accused then put his right hand under her pyjama shirt and brassiere and touched both her breasts and nipples. His other hand he used to restrain her. She protested and asked him to let go of her. He then put his hand under her pants and for a few minutes touched and rubbed her vagina over the top of her knickers. Then the complainant’s auntie NS walked into the room and turned on the light. The accused, according to the complainant, “... quickly took his hand out of my pants and pushed me off his lap ...” (21). Her auntie said “What’s going on?” to which the accused replied “Nothing”.
Again the complainant did not tell anyone in a position of authority about that incident until May 2006 when she told her mother about the two episodes.
Notably there was none of the commonplace evidence from the complainant to the effect that the accused importuned her to keep these incidents a secret.
In cross-examination the complainant admitted having made two statements out of Court which were inconsistent with her testimony in Court, namely:
·in her statement to police made on the 22nd May 2006, she said, in respect of the first incident, that the accused had inappropriately touched both her breasts, whereas in her evidence she said he touched only her right breast; and
·in the same statement to police she said in respect of the first incident again that the accused took hold of her and put her on the floor after she had placed the glass of water on the table, whereas in her evidence she said that she had the glass of water in her hand and it dropped to the floor upon the accused taking hold of her.
She admitted those two instances of inconsistency but insisted that what she said in her evidence was the truth.
She accepted in her evidence that she had some limited knowledge of difficulties between her auntie NS and the accused, in particular concerning N. However, she denied that her allegations about the accused were in any way motivated by a wish to help her auntie in connection with the dispute with the accused.
As to why it took so long to complain to someone in authority, the following exchange took place in the complainant’s evidence:
Q.This all happened, you say, in the September school holidays in 2004. That’s right, isn’t it.
A. Yes.
Q. Yet you didn’t tell you mum –
A. No.
Q. - till May 2006, is that right.
A. Yes.
Q. Why did you leave it so long to do that.
A. Because I thought I’d get in trouble and they wouldn’t believe me.
Q. What changed your mind.
A. It was just time to tell. I just felt that it was time to tell them.
Q. Did anything in particular happen that made you think it was time to tell.
A. No.
Q. You just decided to do it, did you.
A. Yes
(See transcript 38.)
The second witness for the prosecution was, as indicated, NS. After speaking of a number of uncontentious matters she described what she agreed was an “unusual event” which occurred in the September 2004 school holidays when her niece CNB and her nephew T were staying at the Paralowie house. She said that she, the accused and CNB were watching TV in the lounge room and that T was asleep on a mattress on the floor. She said that at about 10 pm to 10.30 pm, at about the time that the movie was finishing, she left the room to go to bed. The accused, she said, remained in the lounge room with CNB. She went on to say that she expected the accused would be coming to bed. She heard the TV “... click off ...”, but still the accused did not appear. After some minutes she said she walked down the hallway towards the kitchen and lounge room and noticed that the lounge room light was off and the house was in silence. She then described what then occurred in the following terms:
... So I then proceeded to step to the right into the lounge room, and when I stepped into the lounge room, I saw my niece sitting on Mr B’s lap, and all of a matter of one second I saw what I saw, with my right hand I flicked the lounge room light on and I then said “What the f’ing hell is going on in here?’, and in that specific one second, he has jumped up and she’s jumped off his lap with coercion from him because he’s jumped up. I said ‘What the f’ing hell is going on in here?’. He said ‘Nothing. Don’t be so stupid. Don’t think like that’. I said ‘It doesn’t f’ing look good. C, you get into f’ing bed and you get your f’ing arse up here’. C was left standing there fluffing the pillow up, looking not quite right in her mind. At that specific time – this all happened in five seconds – she’s then started climbing into the bed. I’ve then commenced to leave the lounge room, I’ve turned the light off and Mr B followed me up to the bedroom like a little puppy dog.
(See transcript 43.)
She added later in her evidence that when she first saw her niece on the accused’s lap, she noticed he had his left arm around her and she was sitting “side on” on the accused’s lap. The complainant was, she said, facing her. She said that she did not see any of the inappropriate touching alleged by the complainant.
In the bedroom, immediately after this confrontation, NS said that the accused deflected her from thinking the worst. Her evidence as to that was as follows:
Q. When you saw that you saw and C went to bed.
A. Yes.
Q. You went back to your bed.
A. Yes.
Q. With the accused.
A. Yes.
Q. Did you follow up your outburst –
A. In the bedroom I did, yes.
Q. - and get an explanation from him.
A.Yes. His explanation was again ‘Don’t be so stupid. Don’t think like that. We were just talking about school’, and I said ‘It didn’t f’ing look good. If I tell her father what I saw, he’ll take your head off’, and he said ‘Don’t be so stupid, we were just talking about school’, and then he got nice and canoodley with me and I put it to the back of my head, forget about it and moved on with my life.
Q.You didn’t see fit –
A.Because he assured me there was nothing going on and I believed him.
(See transcript 59.)
She added later in her evidence that she accepted the accused’s explanation. She said she loved him, trusted him and believed him.
She did not speak to anyone about the matter until Mother’s Day of 2006 when she learnt from her sister that her niece CNB had made the allegations the subject of this matter against the accused. NS said that on that day at the request of police she typed out a statement, which formed the basis of her evidence.
In her cross-examination NS particularised the breakdown in the relationship with the accused in December 2004, the family law disputation which followed and in particular what followed in the wake of the allegation of indecency against the accused made by the child N. NS admitted that there were arguments between her and the accused in the course of 2005 when the accused took access to N. In particular, she admitted that she contested his right to any access to the child, particularly following the allegations of indecency in January 2005.
She denied any knowledge of antagonistic behaviour to the accused by her mother or her brother.
As indicated the prosecution tendered the video recorded interview of the accused. In it the accused denied any inappropriate touching of the complainant and alleged that his former partner and her mother, in concert presumably with the complainant, were falsely accusing him of these assaults to shore up the Family Court proceedings.
Defence Evidence
The accused, as indicated, gave oral evidence. He confirmed those uncontentious background matters I have already particularised. He detailed the history of his relationship with NS, his work history, the onset of health problems and the consequential abandoning of work in late 1998. He said that his relationship with his partner, NS, began to deteriorate when he stopped work. In December 2004 he attempted suicide, and as a result was hospitalised. He said that just prior to this attempted suicide he had “met the woman of his dreams” who had rebuffed him. He confirmed that, whilst he was in hospital, NS found a copy of a love letter written by him to this other woman, and so “... kicked him out ...”. He said he then moved in with his mother.
The accused said there followed Family Court proceedings in relation to him having access to his child N. He said that the issue of his access had been resolved by the end of 2005 and at that time, without success, he attempted to settle a division of property with NS. He said that the property division is still unresolved. He said that at about the time of the emergence of the allegations of CNB in May 2006 he also discovered that there were allegations of him sexually abusing his own daughter back in January 2005. As a result, he said, problems of access to N again arose and for a time he was denied any access to her.
He said that there were disputes with NS’s family. He said that on one occasion, at the time of a “handover” of N, NS’s brother became involved.
As to the allegations, the subject of the two charges, he denied that he had ever inappropriately touched CNB. He accepted that the children stayed during school holidays and slept in the lounge room and that he had played board games, including Monopoly, with, in particular, CNB. He said that he did not believe he had ever been left alone with CNB. He specifically denied being discovered by his partner in the lounge room with CNB on his lap as was alleged by both NS and CNB. He did however accept that over the years CNB may have sat on his lap but he repeated his denial of the specific incident recounted by the complainant and in part supported by NS in the September 2004 school holidays.
He added that in September 2004 he was to use his words “violently ill” and was on medication which quite possibly affected his memory.
In his evidence he did not contest the accuracy of the video recorded interview with police of the 19th November 2006.
Such is a summary of the evidence from both sides.
Matters of Law
I direct myself as to the elements of the offences.
The two incidents described by CNB constitute indecent assaults. The issue for me is whether the prosecution have proved, beyond reasonable doubt, that the two incidents occurred.
The two charges must be considered separately. There is no cross admissible evidence[1].
[1] See R v Jacobs (1998) 143 LSJS 14.
In respect of Count 2, the evidence of NS as to what she saw, when she entered the lounge and turned on the light, is not, as a matter of law, corroborative of the evidence of CNB as to the indecent touching, because NS saw no such touching. Her evidence does not confirm, in any material particular, that the crime had been committed[2]. The evidence of NS does, however, support the evidence of the complainant, CNB, to the extent that the complainant says that the accused sat her on his lap on an occasion in the evening in the September 2004 school holidays.
[2] See R v Baskerville [1916] 2 KB 658 per Reading CJ at 665, 667; see also Ridley v Whipp (1916) 22 CLR 381 per Isaacs J at 392.
The complaint of CNB did not emerge for approximately 18 months. Both counsel agree that I need not “give myself a full blown” warning in accordance with the principles in Longman v The Queen[3]. The need to so warn is now abolished[4]. The abolition of the Longman warning applies to proceedings, commenced by Information laid in the court of trial on and after the 23rd October 2008[5]. The Information in this case is dated the 25th August 2008 and so on the face of it Longman could still apply. So too, the now abolished statutory requirement in s 34I(6a) of the Evidence Act to the effect that the jury, and hence myself as the finder of fact, must be directed that any delay in complaining, does not of itself mean that the allegations are false, also still applies to this case. Like the Longman warning, this statutory injunction is abolished but only in respect of Informations laid after 23rd October 2008.
[3] (1989) 168 CLR 79.
[4] See s 39CB of the Evidence Act 1929.
[5] See s 22 of the Statutes Amendment (Evidence and Procedure) Act 2008 No. 7; see also R v Seigneur (2009) 103 SASR 207.
There is a significant delay here. However, I am content that a full Longman warning is not necessary. Nonetheless, the evidence of the complainant is the only evidence against the accused. It has emerged belatedly in troubled family circumstances. I will carefully scrutinise it before acting on it. Accordingly, whilst I direct myself in accordance with s 34I(6a) I am at liberty to, and will, have regard to this delay when assessing the credibility and cogency of CNB’s evidence[6].
[6] See R v M [2004] SASC 435.
I remind myself that the exercise here is not to evaluate the respective versions but rather to determine whether or not the prosecution has proved the elements of both charges, considered separately, beyond reasonable doubt. In this respect I remind myself of that said by Wells J at 358 in R v Calides[7].
[7] (1983) 34 SASR 355.
In the end, as I have indicated, the issue for me is whether the two incidents, or either of them, have been proved beyond reasonable doubt to have occurred, and in order to so conclude I must necessarily conclude that it is not reasonably possible that the allegations have been fabricated. Of course, if I cannot tell where the truth lies I must acquit[8].
[8] See R v Calides (supra).
Findings – Verdicts
I acknowledge and take account of the helpful addresses of both counsel in this matter.
The complainant, in my view, was a credible and reliable witness. Her evidence had the ring of truth about it. What she said about the second occasion, at least to the extent of sitting on the accused’s knee, had the support of the evidence of her auntie NS, which I also regard as convincing and acceptable. The inconsistency, relating to the first episode of touching, is of concern, but by itself, would not cause me to regard her evidence as not worthy of credit. Also, the delay of 18 months in bringing the alleged assaults to the attention of her mother and then to the police, is not unusual. Her explanation as to why she delayed, though sparse, is not unreasonable.
The timing of the emergence of the allegations is however concerning. The complainant made the allegations not only belatedly but also in the emotion laden setting of matrimonial discord and, in particular, at a time following allegations of indecency made against the accused by his own daughter. Though not finally prosecuted, the allegations of his daughter became – understandably – the basis of attempts by the complainant’s auntie to deny the accused any access to his daughter at all. The complainant had some knowledge of the discord in the family at this time. Accordingly, whilst the delay itself does not cause me to question what the complainant alleges, the timing of the accusations does. In particular, the timing of the allegations justifiably, fuelled the defence submission that the complainant may have been directly or indirectly suborned by the antipathy evident in the family against the accused.
I turn to the accused’s evidence.
In relation to the allegation, the subject of count 1, the accused said that he had a good relationship with the complainant and there may have been times in the long history of his association with her, as she grew up, and socialised with him, that she sat on his lap. It is notable in this context, that whilst he denied the particular incident described by NS, even her evidence was to the effect that, at the time that she discovered the child CNB sitting on his lap he protested his innocence and in particular said that nothing sinister should be read into it. That was an explanation she accepted.
When confronted by the police about 18 months later in May 2006, the accused, in an articulate way, denied the allegations and contended that they were the product of family antagonism against him given the strife which then existed. What he told the police was, in substance, repeated in his evidence. He made the point, both in his statement to the police and his evidence, that upon getting “wind of” the allegations against him, through the Family Court proceedings, he made several approaches to the police to ascertain whether they were intending to prosecute the matter. Mr White suggested that this was consistent with the behaviour of an innocent person. I am not sure that I agree with that. However, there is nothing obviously implausible or indicative of a lack of credibility in the accused’s evidence and in what he said to the police when interviewed in May 2006.
As I have indicated, proof beyond reasonable doubt is required. Suspicion that the accused might have molested CNB as she alleges is not enough. Nor is it sufficient that I conclude that the accused probably sexually abused CNB as she alleges. If I cannot be convinced beyond reasonable doubt that one or both of the incidents occurred as CNB alleges, then the accused is entitled to an acquittal.
In this case, I am unable to decide where the truth lies[9]. On another level, I cannot exclude as a reasonable possibility that these incidents are in some way a product of the discord which existed in the family by May 2006. Accordingly, there is, in my view, a reasonable doubt in respect of both offences and the accused is entitled to the benefit of that doubt. Effectively my decision is that his guilt has not been proven to the requisite degree, that is, beyond reasonable doubt.
[9] See R v Calides (supra).
Accordingly, in respect of both count 1 and count 2 my verdicts are not guilty.
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